Public Policy Update from the State Bar of Michigan
November 22–28, 2010
Volume 8 Issue 48

FOCUS: Mortgage Assistance Relief Services Rule

The final Mortgage Assistance Relief Services (MARS) Rule issued by the Federal Trade Commission on Friday, November 19, includes a broad exemption for lawyers engaged in the practice of law.

Lawyers are generally exempted from the final FTC rule if they are: (1) engaged in the practice of law, (2) licensed in the state where the consumer or the dwelling is located, and (3) complying with state laws and regulations governing attorney conduct related to the rule (i.e., the applicable state bar ethical rules). The final FTC rule adds one additional condition for lawyers to be exempt from the advance fee ban under the rule (i.e., the lawyer must place any fees he or she collects in a client trust account and abide by state laws covering such accounts).

In the Capitol
Committee Meetings of Interest for the Week of 11/29
11/30 House Judiciary
Please note schedule change.
Agenda: SB 212 Amend firearms act to allow police agency to retain certain confiscated weapons for use by that police agency under certain circumstances; SB 1376 Provide for technical amendments to the Michigan trust code; SB 1377 Correct the cross-reference to the estates and protected individuals code in the cemetery regulation act to reflect adoption of Michigan trust code; SB 1378 Correct the cross-reference to the estates and protected individuals code in the prepaid funeral and cemetery sales act to reflect adoption of Michigan trust code; SB 1056 Revise places where the district court is required to sit for districts of the second class and clarify authority of presiding judges in districts of the second class; HJR WW Revise nomination of attorney general and secretary of state; SB 449 Clarify definition of regularly employed in commission on law enforcement standards act and allow for certain waivers; SB 1475 Regarding the liability for a defect in a sidewalk, clarify that inference regarding a defect of less than 2 inches applies to any sidewalk maintained by a municipal corporation; HB 5908 Require legislative service bureau to conduct redistricting; SB 1382 Modify procedure for continuation of a surety bond under certain circumstances; SB 223 Establish identity theft forfeiture provisions, and increase penalties for identity theft; SB 224 Amend penal code to include identity theft protection act as predicate offense underlying racketeering activity; SB 225 Expand prosecutorial jurisdiction for certain counterfeit debit, credit card, and driver license offenses; SB 226 Enact sentencing guidelines for increased penalties for certain identity theft protection act violations; SB 39 Provide immunity for liability of a peace officer for injuries caused while rendering assistance outside jurisdiction; And any business properly before this committee.

11/30 Senate Judiciary
Please note schedule change.
Agenda: HB 5287 Revise provision prohibiting issuance of specified number of traffic citations; HB 5318 Allow fines, or costs to be collected in same manner as civil money judgment; HB 5575 Prohibit human trafficking by force, fraud, or coercion, and provide penalties; HB 5576 Enact sentencing guidelines for crime of human trafficking; HB 5577 Establish human trafficking as a predicate offense for racketeering violation; HB 5578 Allow forfeiture of property involved in human trafficking; HB 5579 Provide for additional restitution for victims of human trafficking; HB 6053 Allow use of certain self-defense spray or foam device by person holding concealed pistol permit under certain circumstances; HB 6156 Remove population limit for municipalities eligible to seek reimbursement from inmates; HB 6197 Create presumption of decedent's intent regarding certain federal estate tax credits and deductions during 2010; HB 6389 Require copies of presentence reports to be provided to certain individuals under certain circumstances; HB 6390 Revise confidentiality requirements for certain reports made by probation officers; Pending referral: HB 4431 Amend penal code to allow police agencies to retain certain confiscated weapons for use by that police agency under certain circumstances.
SBM Position on HB 5318: Support
Criminal Law Section Position on HB 5318: Support
SBM Position on HB 6389 and HB 6390: Support

12/1 House Families and Children's Services
Agenda Item of Interest: HB 4015 (Liss) Children; adoption; access to certain adoption records; allow unless a denial is on record.
Family Law Section Position: Oppose

Complete Committee Meeting List

New Public Acts

At the Bar
SBM Members Qualify for Discounts at ABA Techshow

Judicial Vacancy—54-A District Court
Hon. Amy Krause is vacating her seat on the 54-A District Court. State Bar members interested in applying for the judgeship should submit an application by December 1, 2010.
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FOCUS: The Board of Commissioners met on November 19, 2010, at which time the State Bar of Michigan adopted the following Public Policy position by a unanimous vote:

The Domestic Violence Committee was authorized to request new SCAO court forms and changes on existing SCAO court forms necessitated by recent amendments to MCL 600.2950a. The Committee is also authorized to seek an amendment to MCR 3.705(B)(2) to allow enough time for a respondent to file an offer of proof in light of non-domestic sexual assault PPO actions created by recent amendments to MCL 600.2950a.

Sections and Committees
The Litigation Section submitted a Public Policy report on 2002-24—Proposed Amendment of Rule 7.3 of the Michigan Rules of Professional Conduct. The proposed addition of subrule (c) of MRPC 7.3 would require a lawyer who seeks professional employment from a prospective client to designate the writing as an advertisement by prominently displaying the words "Advertising Materials" on the outside envelope (or brochure, pamphlet, or postcard) and at the beginning and end of every written, recorded, or electronic communication.

In the Hall of Justice
Proposed Amendments
2005-11 Proposed Amendments of Canon 4 and Canon 5 of the Michigan Code of Judicial
Conduct

The proposal contained in this order seeks to clarify the role a judge may play in fundraising events for law-related and educational, religious, charitable, fraternal, or civic organizations. The proposal would specifically allow a judge to speak, appear, or be a guest or accept an award at a fundraising event of both law-related and educational, charitable, religious, and civic organizations, and must be shielded as much as possible from knowing who has contributed and the amount of contributions.
Issued: November 23, 2010
Comment period expires: March 1, 2011
Public hearing: To be scheduled

2007-18 Proposed Amendment of Rule 2.117 of the Michigan Court Rules
The proposed amendment would revise MCR 2.117 to provide that an attorney-client relationship continues until a final judgment is reached and the period allowed to appeal by right has expired unless the attorney discontinued the relationship before that time. Also the proposal would clarify that follow-up or ministerial actions performed by the attorney following notice of termination do not extend the attorney-client relationship.
Issued: November 23, 2010
Comment period expires: March 1, 2011
Public hearing: To be scheduled

2008-10 Proposed Amendments of Rule 6.425 an Rule 7.210 of the Michigan Court Rules
This proposal would require a sentencing judge to prepare and include with the case record a form in which the judge outlines the reason or reasons for departure from the sentencing guidelines. The duty to do so would be in addition to the obligation to state such reasons on the record. The proposal is designed to provide litigants and appellate courts a clear and unambiguous recitation of the reasons for departure by the sentencing court.
Issued: November 23, 2010
Comment period expires: March 1, 2011
Public hearing: To be scheduled

2008-11 Proposed Amendment of Rule 2.507 of the Michigan Court Rules
This proposed amendment of MCR 2.507was submitted to the Court to clarify that oral agreements not made in open court to settle a case will not be enforceable. Like an agreement subject to the statute of frauds, agreements to settle a case would be required to be made in open court or in writing to be binding.
Issued: November 23, 2010
Comment period expires: March 1, 2011
Public hearing: To be scheduled

2008-32 Proposed Amendment of Rule 2.203 of the Michigan Court Rules
This proposed amendment would clarify that summonses must be issued when a counterclaim or cross-claim is filed, and would establish an expiration date identical to the expiration date of summonses issued when a third party is added to an existing case.
Issued: November 23, 2010
Comment period expires: March 1, 2011
Public hearing: To be scheduled

2010-30 Proposed New Rule 2.412 of the Michigan Court Rules and Proposed Amendments
of Rules 2.403, 2.411, and 3.216 of the Michigan Court Rules

Proposed new MCR 2.412 and the proposed amendments of MCR 2.403, 2.411, and 3.216 would consolidate provisions related to mediation confidentiality into one rule and would expand the current exceptions to mediation confidentiality, as recommended by the Mediation Confidentiality and Standards of Conduct Committee convened by the State Court Administrative Office.
Issued: November 23, 2010
Comment period expires: March 1, 2011
Public hearing: To be scheduled

Federal News
Judge's Budget Will Seek Big Expansion of Legal Aid to the Poor in Civil Cases
(New York Times, 11/28/10)

State News
Lame-Duck Lawmakers May Leave Snyder Lots of Leftovers
(Detroit Free Press, 11/29/10)

State Agencies Scramble to Fill Retirement Openings
(Detroit News, 11/24/10

Links of Interest
Public Policy Resource Center | Michigan Supreme Court | Michigan Legislature | MCL Search Engines